Copyright ownership and creators

Software (source code and the object code) is protected under German copyright law known as the “Urheberrechtsgesetz” (or Copyright Act). It is highly influenced by European Union Law, specifically the EU copyright directive, and has similarities to the law of other EU members.

A unique characteristic of German copyright law is that any intellectual creation is tightly connected with its creator. This special connection also means that the copyright itself cannot be transferred to another person (unless through inheritance). Copyright must always stay with its creator, for example the authors of the relevant code.

Another unique aspect of German copyright law is that employees will always retain copyright to all the work they have created, even when produced during working hours or in the normal course of their employment. This copyright cannot be transferred to the employer. However, German law grants the employer with a statutory licence for any copyright works created by employees during working hours. This means an employer obtains an exclusive license automatically by law, removing any need to enter into licence agreements with individual employees.

If you engage individual contractors to develop software, you can only make commercial use of software by obtaining a licence from the author of the code. This would only give you a contractual right to use the code which could potentially be vulnerable to being revoked by the coder at a later time.  This effectively hands contractors more control over developed software than in other countries where a business can assume ownership of copyright as part of its contractual arrangements with individual developers.

Authors of software also have ‘moral rights’ to their work. This means software developers have the right to decide when their work is published and the power to stop their publication. A coder also has the right to be named as the work’s author and can keep others from distorting his or her work. However, as is the case in Australia, moral rights can be limited through contractual obligations.